In response to a resolution passed by the Oyster Bay Town Board on October 6, 2020, that purports to create rules of decorum at Town Board meetings and seeks to prohibit inappropriate behavior during board meetings, a Town resident commenced an action in the United States District Court for the Eastern District of New York challenging the resolution’s constitutionality. The complaint was filed by Kevin McKenna, who describes himself as a citizen advocate and editor in chief of the Town of Oyster Bay News, and is a person who regularly comments at Town Board meetings. Mr. McKenna claims that Resolution No. 567-2020 is a violation of the United States and New York State Constitutions’ protection of free speech, freedom of association, and freedom of the press, and seeks declaratory and injunctive relief, as well as monetary damages against the Town.

The resolution states, in part, that “[s]peakers shall observe the commonly accepted rules of courtesy, decorum, dignity and good taste and shall not use foul language, display unacceptable behavior or be disruptive of the proceedings. Speakers may not make personal comments about public officials, town residents or others. Members of the public and Board members shall be allowed to state their positions in an atmosphere free of slander, threats of violence or the use of the Board meeting as a forum for politics . . . Any person making offensive insulating, threatening, insolent, slanderous or obscene remarks or gestures, or who becomes boisterous, or who makes threats against any person or against public order and security while in the Board Room, either while speaking at the podium or as a member of the audience, shall be forthwith removed at the direction of the presiding office[r]. Any person removed from a public meeting at the direction of the presiding officer may be charged with disorderly conduct in accordance with New York State Penal Law Section 240.20.” Those who violate the resolution face a sentence of up to 15 days in jail.

On November 16, 2020, U.S. District Judge Gary R. Brown granted McKenna’s motion for a temporary restraining order and issued an injunction preventing the Town of Oyster Bay from enforcing the recently adopted rules. Judge Brown scheduled a court conference on December 2, and directed the Town’s attorneys to either rewrite the resolution prior to that date or face a hearing on its constitutionality a few days later. A statement issued by the Town suggests that it will “slightly alter verbiage while maintaining the same intent” prior to the upcoming conference.

The injunction drew praise from journalists and other advocates for free speech who said the resolution has a chilling effect on the First Amendment. The Town, on the other hand, characterized the lawsuit as being frivolous and an attempt to hamper good government, and the obligation to defend against its claims a waste of taxpayer money. In a recent Newsday story, Nassau County District Attorney Madeline Singas expressed doubt that charges for violations of the new rules would lead to prosecution.

This case will undoubtedly be monitored closely by those who regularly appear at public hearings and use that forum to voice criticisms of actions by their local government.

Last year, the New York County Supreme Court heard an Article 78 challenge by Preserve Our Brooklyn Neighborhoods (“POBN”), a civic organization dedicated to maintaining the unique character and historical significance of the Fort Greene area of Brooklyn, New York.  This lawsuit, which I discussed in a previous post, turned on whether a resolution passed by the New York City Council (the “City”) constituted unconstitutional spot zoning.

As a refresher, in the Supreme Court action, POBN sought to annul and vacate the City’s 2018 resolution to rezone part of the Fort Greene area to allow for, inter alia, commercial and mixed residential development.  POBN brought causes of action alleging constitutional violations and violations of the State Environmental Quality Review Act (“SEQRA”) and the City Environmental Quality Review (“CEQR”).

Although the SEQRA and CEQR claims were dismissed on procedural grounds, the Supreme Court would have also dismissed them on the merits.  Such challenges can only succeed if the petitioner demonstrates that the administrative agency rendering the underlying determination acted arbitrarily.  The Supreme Court held that the New York City Planning Commission appropriately followed the requirements of SEQRA and CEQR and did not act in an arbitrary and capricious manner.  The First Department agreed and affirmed the dismissal on those same grounds.

POBN’s other cause of action alleged unconstitutional spot zoning, which the New York State Court of Appeals has defined “as ‘the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners” (Rodgers v. Tarrytown, 302 N.Y. 115, 123, 96 N.E.2d 731, 734 [1951]).”  As previously discussed, constitutional challenges to zoning legislation are subject to a high bar and are successful only if the petitioner is able to prove its claim beyond a reasonable doubt.

In denying POBN’s petition, the Supreme Court pointed out that POBN was only concerned with how the development may negatively impact its own interests, while ignoring the fact that it would create new affordable apartments and community space in the area.  POBN’s sole concern that the development would damage the character of the neighborhood was insufficient to overcome its heavy burden of proving unconstitutional spot zoning, and the First Department agreed.

Ultimately, the First Department held that the resolution was not “enacted solely for the benefit of the lot in question to the detriment of other owners.”  Rather, “the rezoning [was] part of ‘a well-considered and comprehensive plan calculated to serve the general welfare of the community’ (Collard v Incorporated Vil. of Flower Hill, 52 NY2d 594, 600 [1981]).”  For these reasons, the First Department also affirmed the dismissal of POBN’s cause of action alleging unconstitutional spot zoning.

The Covid-19 health crisis has sent widely-discussed shockwaves through the real estate industry that could have long-reaching impacts on the future of land use on Long Island. For starters, the pandemic shutdown hit the brick-and-mortar retail industry like a bomb. In addition to devastating small businesses everywhere, the pandemic forced under several long-struggling (and some not-so-struggling) retail giants. The pandemic also caused an urban diaspora of people fleeing New York City with a corresponding surge in residential home purchases throughout the tri-state area. And finally, the pandemic has forcibly introduced the work-from-home business model into many industries that probably had no intention of transitioning to a remote workforce (the practice of law included).

So, what will happen if these trends do not reverse, or at least slow, once this is all over? What will become of vacant “big box” and anchor-tenant spaces? Amazon probably won’t need that many “last-mile” warehouses on Long Island. (Or will it?) What will happen to office buildings and corporate parks if businesses switch to at-home work permanently? Where will former city-dwellers and existing residents alike find housing on an island that was already struggling with a massive housing shortage? The answers to these questions will depend, in part, on the comprehensive land use plans of Long Island’s towns and incorporated villages.

By statute, towns and incorporated villages in New York State are required to exercise their zoning powers in accordance with a “comprehensive plan” that is an expression of the community’s long- and short-term planning goals. (See Town Law § 272-a; Village Law § 7-722). A town or village’s comprehensive plan need not be contained in a single, written document (although it is encouraged), it can also be synthesized from their local zoning code, resolutions and/or zoning maps. (Id.). But regardless of what form a comprehensive plan takes, it is universal that a zoning action that is not consistent with or that directly contradicts a town or village’s comprehensive plan is vulnerable to legal challenge and potential invalidation. (See e.g. Udell v Haas, 21 NY 463 [1968]). For that reason, towns and villages are required to periodically revisit their plans (see Town Law § 272-a[10]; Village Law § 7-722[10]), which can lead to desired and/or necessary amendments to local zoning laws.

The reality is that the real estate industry on Long Island was already in a state of transition when the pandemic struck. Concepts like “mixed use” developments, “transit-oriented” developments, “walkability,” and “downtown revitalization” were already working their way into Long Island communities, with widely varied degrees of success. At the same time, the retail industry was already shrinking and looking for ways to reinvent the in-person shopping experience to compete with online sales. However, the zoning codes of some of Long Island’s towns and villages reveal that some parts of the Island have been slow or even reluctant to embrace redevelopment to meet evolving real estate trends. Indeed, some zoning codes simply do not contemplate or address the evolving trends mentioned above. Consequently, these same areas may not be as equipped as others to deal with the pandemic’s yet-unknown permanent impacts on Long Island real estate.

Admittedly, the process of updating a comprehensive plan is a time-consuming and potentially expensive one. Most often, the process involves the formation of a formal committee, retention of professional consultants, and months (or longer) of in-depth analysis and planning. And by law, the process must include a public hearing and appropriate environmental study in accordance with the State Environmental Quality Review Act (SEQRA). (See Town Law § 272-a[6], [8]; Village Law § 7-722[6], [8]),  However, updating a comprehensive plan also gives towns and villages a tool to actively embrace change and to help shape it rather than having change creep in solely, or break down the doors. For all these reasons, it is important for every town and village on Long Island to be aware of their comprehensive plans and to consider whether a comprehensive plan update is on the horizon.


On September 21, 2020, the Supreme Court, Nassau County in Town of Oyster Bay v. 120 Westend LLC, Supreme Court, Suffolk County, Index No. 608065/2020 granted a preliminary injunction to the Town of Oyster Bay (“Town”) halting the use of an existing hotel as an emergency homeless shelter stating that there is no pre-emption by the State of New York that allows a property owner to convert a facility to a potential non-conforming use without local review and approval.  This is a cautionary tale relating to the risks associated with multi-jurisdictional approvals.

Formerly a Howard Johnson’s and then a Hampton Inn hotel, the subject property is located at 120 Jericho Turnpike, Jericho, New York, and has been used continuously as a hotel/motel by special permit issued by the Town since 1965.  On July 6, 2020, the Defendant entered into a 10-year lease with non-party, Community Housing Innovations (“CHI”), a state and federally funded non-for-profit corporation, which operates and provides emergency housing assistance to homeless families and individuals. Having operated for decades in Nassau County, CHI obtained permission from the Nassau County Department of Social Services (“NCDSS”) to utilized the subject property as a homeless shelter as part of a 2017 Memorandum of Understanding (“MOU”).  As part of the contract with NCDSS, the existing facility passed a health and safety inspection performed by Nassau County and New York State.

On July 23, 2020, Defendants disclosed at a school board meeting, its intention to convert the hotel to a homeless shelter.  Following this meeting, the Town issued various summons and stop-work orders.  The Town then sought and obtained a temporary restraining order (“TRO”) in August of 2020.

In opposition to the Town’s preliminary injunction motion, the  Defendant’s main arguments focused on the alleged preemption of Article 7 of the New York’s Social Services Law, which comprehensively regulates residential care facilities so as to prohibit a local municipality from imposing conditions on their operations.  The Court found that although the State has the authority to license and to grant operating certificates for homeless shelters, as well as the regulation of such operations, this licensing authority cannot be stretched to preclude a local government from requiring that a proposed facility comply with local zoning laws.  The Court stated that Article 7 of Social Services Law, “while extremely comprehensive, does not make any reference, nor can it be reasonably read to imply such authority.”

Turning to the pre-emption caselaw relied upon by the Defendant, the Court found controlling the distinction that the proposed operations had no operating history at the location.  Because there was no homeless shelter currently operations at the subject property, the court determined that the Town was not attempting to control the operations of the potential shelter, but merely seeking to determine whether such a use is permitted under its building code.  Additionally, in defeating Defendant’s reliance on its prior approval by the State and contract with Nassau County, the Court found the language in various documents requiring “local approvals” as confirmation that the State had not occupied the field.

Although the Court acknowledged the State’s interest in preventing local municipalities from interfering with the day-to-day operations of homeless facilities, it found no authority to support Defendant’s argument that the State’s Social Services Law allows a facility operator to locate a facility anywhere it obtains a contract to operate without complying with local zoning and land use laws.  As a result, the Court found there is no pre-emption by the State of New York that allows a property owner to convert a hotel to an emergency homeless facility without local review and approval.

In July of 2016, Lisa and Robert Gerbino (hereinafter “Gerbinos”) made an application to the Town of East Hampton Zoning Board of Appeals (“ZBA”) for setback relief to allow an existing patio that was built without a permit to remain 10.2 feet from the southern property line where 20 feet is required at their property located at 3 Old Station Place, Amagansett. The Gerbinos purchased their property with the subject patio which is located next to their legally constructed pool. They discovered the patio was built without a permit and in violation of setbacks when they sought a certificate of occupancy for a legally constructed pool house.

At the ZBA hearing held on February 28, 2017, the applicant submitted that (i) the patio was built by the prior owner and the Gerbinos believed it was constructed legally along the southern side of the pool, (ii) the patio is entirely screened by large evergreen trees along the southern side of the property and (iii) there would be no adverse impact on the neighbors or community. The applicant further submitted a letter from the neighboring property to the east, 52 Atlantic Avenue, in support of the application.

A representative for the vacant property owner at 5 Old Station Place, which shares the lot line from which the variance is requested, testified in opposition to the application. Citing Town Code §255-11-89, which requires accessory structure setbacks for pool patios to be doubled, the opposition asserted that the purpose of the law is to protect property owners’ use and enjoyment of their back yards since pools are active recreational structures. The doubled setback requirement creates adequate buffer and transitional yards for pools. Moreover, the representative in opposition stressed that the construction on the lot was maxed out by constructing an approximate 6,000 square foot house (she included the finished basement in her calculation) on a lot shy of ½ acre with the pool placed at a maximum distance from the house in an effort to extend the back yard, negatively impacting her client’s design flexibility with respect to his vacant parcel. Finally, she submitted that the neighbor’s letter in support was submitted from the prior owner of the subject property that constructed the pool and pool patio at issue and was not impacted by the requested variance.

The Zoning Board of Appeals denied the variance request by determination dated May of 2017, stating that, “granting the requested variance will create a detriment to nearby properties. The reason setbacks are doubled for pool patios are to mitigate the noise impact to neighbors caused by the use of the pool and patio. Applicant is requesting a 51% variance along the entire length of the patio. Moreover, the applicants have not presented the Board with any unique circumstances explaining why they cannot comply with the Town Code. There is area along the north side of the pool that can accommodate the same amount of pool patio without requiring a variance from the Board. The Board notes that the neighbor most affected by the patio spoke out against granting the variance.”

The Gerbinos appealed, and the Supreme Court, Suffolk County in Gerbino, et al., v. Whelan, Supreme Court, Suffolk County, Index No. 2987-2017, overturned the ZBA determination and granted the Article 78 Petition. The Court held that the decision of the ZBA was not supported by a rational basis and as such, was arbitrary and capricious. The Court stated, “except for an unsupported objection by one adjoining property owner, there was no evidence proffered that the requested variance would have an undesirable effect on the character of the neighborhood … [f]urthermore, a patio 10.2 feet from the southern border of the property as opposed to the 20 feet required, clearly does not impact the adjoining property owners or neighbors.” The Town appealed.

By decision dated August 19, 2020, the Appellate Division, Second Department overturned the Supreme Court decision and upheld the ZBA’s denial of setback relief. Noting the broad discretion afforded to local zoning boards in considering applications for variances, the Court found that, the Supreme Court should have denied the petition and dismissed the proceeding as the Zoning Board’s determination had a “rational basis in the record.” The Court stated that “the record supports the Zoning Board’s determination that the variance is substantial, that granting the variance would have a detrimental impact upon neighboring properties, that feasible alternative locations exist to situate a pool patio on the property, and that any hardship was self-created (see Matter of Kramer v Zoning Bd. of Appeals of Town of Southampton, 131 AD3d at 1172; Matter of Sacher v Village of Old Brookville, 124 AD3d 902, 904). Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding on the merits.”

As a result, the Gerbinos are faced with having to either (i) remove the existing noncompliant patio, (ii) relocate the pool patio to a conforming location, or (iii) go back to the ZBA with a proposed patio in a new location should that new location require zoning relief.



Failure to name a necessary party when challenging a land use determination may result in dismissal, and leave a challenger without further recourse. CPLR 1003 provides that the nonjoinder of a party who should be joined under CPLR 1001 (i.e. a person ought to be a party if he or she might be inequitably be affected by a judgment in the proceeding), is a ground for dismissal without prejudice. Although such dismissal is technically “without prejudice,” it may actually be prejudicial in practice; if the statute of limitations has lapsed when the petition is amended to join the missing party, then the petitioner’s challenge may be barred by the statute of limitations. The amended pleading might find refuge in the relation back doctrine, but a petitioner should not hope to rely on fixing this problem after the fact.

This month, in MMSI Props., LLC v City of Glens Falls, 2020 N.Y. Slip Op. 51193(U) [Sup Ct Warren County, Oct. 13, 2020], the Supreme Court, Warren County, dismissed a neighbor’s challenge to a planning board decision approving construction of a 29-unit apartment complex for chronically homeless individuals and families, those suffering from mental illness, and victims of domestic violence (“Project”), because the neighbor failed to name the owner of the subject property in its petition. The Court also rejected the petitioner’s attempt to rely upon the relation back doctrine to salvage its challenge.

The Project

Respondent Warren-Washington Association for Mental Health, Inc. (“WWAMH”), a not-for-profit corporation formed to improve the quality of life for those affected by mental illness and to promote the importance of mental health in the community, planned to construct the Project within the light industrial district of the City of Glens Falls (“Glens Falls”). The subject site is owned by respondent AMH Resources Corp. (“AMH”), which purchased the site in 2018 for WWAMH to utilize for the Project. WWAMH and AMH Resources share many of the same officers, directors and key personnel, and are represented by the same counsel.

In May 2019 WWAMH filed an application with the Glens Falls Planning Board (“Planning Board”) to construct the Project. On September 3, 2019, the Planning Board resolved to approve the Project. On October 2, 2019, the petitioner, a neighboring business owner (“Petitioner”), commenced this Article 78 proceeding to vacate the Planning Board’s approval of the Project. The Petitioner, however, failed to name AMH – the owner of the subject site.

The Challenge and Petitioner’s Amendment

WWAMH and other respondents answered and asserted several objections in point of law, including that the Court must dismiss the petition because Petitioner failed to name AMH as a necessary party (2020 NY Slip Op 50677[U] [Sup Ct Warren County, Jun. 8, 2020]). In response, Petitioner moved to amend its petition to include AMH as a respondent, and the respondents opposed arguing that the statute of limitations had lapsed so Petitioner could not amend. The Court granted Petitioner’s motion to amend the petition pursuant to CPLR 1001(b) – finding that the expiration of the statute of limitations does not deprive the Court of jurisdiction over a necessary party, and so the Court must order AMH summoned. Significantly, the Court also noted that the statute of limitations constituted a defense which AMH, once summoned, would be free to assert in its answer.

Objection in Point of Law to Dismiss for Nonjoinder, and Relation Back

Upon being joined, AMH asserted the statute of limitations defense and argued the petition must be dismissed because the statute of limitations expired before filing and service of the amended petition. Petitioner did not dispute the expiration of the limitations period, but sought to apply the relation back doctrine. The doctrine permits a petitioner to amend a petition to add a respondent beyond the limitations period if he or she can demonstrate: (i) the claims arose from the same occurrence; (ii) the added respondent is united-in-interest with a previously named respondent; and (iii) the added respondent knew or should have known that, but for a petitioner’s mistake as to the added respondent’s identity, the petition would have been brought against him or her.

The Court held that Petitioner satisfied the first two elements, but failed to satisfy the third: “There is no question that the claims arose out of the same occurrence, nor that [AMH] is united in interest with WWAMH. As such, petitioner has succeeded in demonstrating the first and second prongs.


[However,] [P]etitioner has failed to demonstrate that diligent efforts were made to ascertain [AMH] identity as owner of the property prior to expiration of the statute of limitations. Petitioner therefore has not satisfied third prong of the inquiry based upon its alleged mistake of identity in believing that WWAMH owned the property.”

Petitioner’s Failure to Satisfy the Relation Back Doctrine

Petitioner claimed that its failure to name AMH was due to an inadvertent omission because the site plan application named WWAMH as the owner of the Project site, and that due to WWAMH’s and AMH’s interconnectedness, AMH knew or should have known that – but for the inadvertent omission – AMH would have been named as a respondent. The Court agreed that AMH knew or should have known about its inclusion in the proceeding, but denied Petitioner the benefit of the relation back doctrine because its failure to include AMH was not inadvertent.

With respect to Petitioner’s purported omission, the Court noted: “Inasmuch as petitioner fails to offer any explanation for its inadvertent omission, the Court is left to surmise — based upon the content of its argument — that it believed WWAMH owned the property. This constitutes a mistake of identity, which is entitled to the benefit of the doctrine — provided the petitioner can demonstrate that diligent efforts were made to ascertain the unknown party’s identity prior to expiration of the statute of limitations.” The Court held the Petitioner failed to show it made diligent efforts to ascertain AMH’s identify.

First, although WWAMH’s application to the Planning Board left the “owner” space blank, indicating that the applicant is the owner, the application included a copy of the deed for the Project site. The deed clearly indicated AMH is the owner. Second, the application cover letter stated that the Project would be owned by AMH, and operated by WWAMH. Third, the pertinent meeting minutes show that discussions of the application before the Planning Board apprised all attendees of AMH’s existence and interest in the Project (even though WWAMH’s engineer erroneously described AMH as the applicant, and not the owner). Petitioner’s principal member and its counsel attended and participated in the meeting, offering remarks in opposition to the Project.

The Court held that “[u]nder the circumstances . . . [P]etitioner has failed to demonstrate that diligent efforts were made to ascertain [AMH’s] identity as owner of the property prior to expiration of the statute of limitations. Petitioner therefore has not satisfied third prong of the inquiry based upon its alleged mistake of identity in believing that WWAMH owned the property.” The Court also held that “[t]o the extent that [P]etitioner was perhaps aware that [AMH] owned the property and simply failed to name it as a respondent in the original petition — which is the more likely scenario given the record before the Court — this would constitute a mistake of law, which also fails to satisfy the third prong of the inquiry.”

Dismissal for Nonjoinder

Ultimately, the Court declined to permit Petitioner to rely upon the relation back doctrine, and held AMH was entitled to dismissal of the petition as against it as time-barred. Furthermore, because AMH was no longer a party, the entire proceeding must be dismissed for nonjoinder (i.e. failure to name a necessary party). To avoid this procedural pitfall and reach the merits of an Article 78 challenge, a petitioner must be sure to identify and name all necessary parties when commencing his or her proceeding.

As the popularity of short-term rentals continues to grow and many local governments are adopting restrictions to keep their use in check, the authors of the Long Island Land Use and Zoning blog are closely monitoring how these restrictions are faring in the courts.  As you will see from the recent case entitled Churchill v. Town of Hamburg, 2020 N.Y. Slip Op. 05356 (4th Dep’t 2020), short-term rental restrictions may be ineffective if they are not properly placed within a municipality’s zoning ordinance.

Petitioners, Michael Churchill and Diana Stirling, sought to operate their residence in the Town of Hamburg, New York, as an Airbnb rental.  In 2017, they made application to the Planning Board requesting a special use permit to allow their residence to be used as a “tourist home.” The Petitioners claimed that “tourist homes” are a permitted principal use in the R-1 District with a special use permit from the Planning Board because Town Code § 280-31 states that all uses (except for golf clubs and hospitals) that are permitted in the R-E District are permitted in the R-1 District.  They also pointed out that the R-1 District regulations do not exclude “tourist homes.”

With respect to allowable uses in the R-E District, Town Code § 280-24 expressly provides:

Permitted uses and structures.

Uses and structures permitted in the R-E District are as follows:

A.  Principal uses and structures:

*  *  *

(6)   The following uses by special use permit authorized by the Planning Board (see Article XLVI):

*  *  *

(b)   Bed-and-breakfast establishments and tourist homes.

The Town’s Code Enforcement Official (“CEO”) concluded that a “tourist home” is not a permitted principal use in an R-1 District and denied the application.  Under the CEO’s interpretation of the Town Code provisions, the Petitioners would first have to obtain a use variance before applying for a special use permit from the Planning Board in order to operate their residence as an Airbnb rental.

The Petitioners requested an interpretation of the relevant Town Code sections and a review of the CEO’s determination from the Zoning Board of Appeals (“ZBA”).  Following a public hearing, the ZBA affirmed the CEO’s interpretation and determination.  The Petitioners then commenced an Article 78 proceeding seeking to annul the ZBA’s determination.  The Erie County Supreme Court denied the petition and an appealed ensued.

The Appellate Division, Fourth Department, agreed with the Petitioners that the ZBA’s interpretation of the Town Code lacked a rational basis and that the Supreme Court erred in sustaining the ZBA’s determination.

At the outset, the Court concluded that the Supreme Court failed to apply the clear language of the Town Code’s relevant provisions.  In the court’s own words, “a plain reading of sections 280-24 and 280-31 . . . unambiguously demonstrates that special uses are permitted principal uses, subject to authorization by the Planning Board.”

Contrary to the ZBA’s determination and the interpretation advocated by Town, the Appellate Division concluded that the Town Code establishes that special uses are permitted uses in specific districts.  However, in such cases, the burden is on an applicant for a special use permit to show that the proposed use is allowable within that district by establishing that the use has the requisite individual characteristics.

While it is obvious from its position in the litigation that the Town Board clearly did not intend “tourist homes” to be permitted uses, the Court was constrained to apply the plain language of the relevant code sections.  However, in pointing out that “if the Town Board had intended for special uses to be separate from principal uses, it would have separated them into their own category as it did with accessory uses,” the Court gratuitously provided the Town with a roadmap for amending its ordinance, if it wished to do so.

In Incorporated Village of Lindenhurst v. One World Recycling, LLC, et al., the Second Department reversed the lower court’s denial of permanent injunctive relief, in large part based on the existence of prior agreements between the parties.  The appellant, Incorporated Village of Lindenhurst (the “Village”), sought to prohibit One World Recycling, LLC (“One World”) from exceeding waste processing limits previously agreed to between the Village and One World’s predecessor in interest.

In 2008, the New York State Department of Environmental Conservation (the “DEC”), authorized One World’s predecessor to process up to 370 tons of waste per day, for no more than a combined weekly average of 2,200 tons.  After Hurricane Sandy hit the area in late-October of 2012, the DEC granted One World’s predecessor a temporary emergency authorization to increase its daily waste processing limits to 1,100 tons.  Prior to the expiration of that authorization, One World acquired the facility and applied to the DEC to permanently keep the limits at 1,100 tons per day.

During the pendency of that application, the Village brought an action against One World for, inter alia, breach of contract and injunctive relief.  In particular, the Village alleged that One World’s application to permanently increase its waste processing limits to 1,100 tons per day violated terms of prior agreements between the Village and One World’s predecessor.  Accordingly, the Village sought to preliminarily enjoin One World from processing more than 500 tons of waste per day, and to permanently enjoin One World from exceeding the limits set forth in the 2008 permit.

However, before the Court ruled on the preliminary injunction, the DEC issued a renewal permit allowing One World to process an annual average of 500 tons of waste per day, but to never exceed 600 tons in any single day.  As a result of this renewal permit, the Court denied the Village’s requests for preliminary and permanent injunctive relief.

Upon appeal, the Second Department effectively reversed.  Although the renewal permit changed the status quo, eliminating the prospect of any preliminary injunctive relief, it did not preclude the Court from considering the merits of the Village’s action.  The Second Department held that if the Village could ultimately prove its various claims, such as One World’s breach of a prior agreement due to the increased processing limits, it may then be entitled to its requested permanent injunctive relief, even despite the DEC renewal permit allowing such increase.

Takeaway:  Foresight is incredibly important for any individual or entity entering into a contract.  What one binds itself to now may well limit or even prohibit it from taking otherwise permitted action in the future.  This is true for any legal agreement, and a contract with a municipality is no exception.

The controversy in Matter of McGraw v Town Board of Town of Villenova (4th Dept Docket No CA 19-01362, Aug. 20, 2020) arose from the environmental review conducted on a proposed wind farm in upstate New York. The developer of the project sought a local code amendment and special permit from the Respondent Town Board for 29 wind turbines up to 492 feet in height. As part of the mandatory environmental review process pursuant to SEQRA, the developer prepared a draft environmental impact statement, and later, a supplemental draft impact statement, both of which the Town Board accepted. The Town Board accepted a final environmental impact statement for the project in November 2016.

More than a year after it received its approvals, the developer returned to the Town Board with an application to increase the height of the wind turbines another 100 feet for a maximum height of 599 feet. The developer submitted a full environmental assessment form (FEAF) as part of its application.

Based on the information contained in the FEAF, the Town Board declined to order a second supplemental environmental impact statement; adopted a negative declaration of environmental significance, and approved the developer’s amended application. The Petitioners sued alleging that the Town Board failed to comply with SEQRA by not taking the requisite “hard look” at the environmental issues associated with increasing the height of the turbines, particularly with respect to how the project might impact the endangered bald eagle. The lower court agreed.

The Fourth Judicial Department on appeal reversed the lower court’s decision finding that the Town Board had properly exercised its discretion when it declined to conduct further environmental review. The Court wrote:

During the SEQRA process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project (6 NYCRR 617.9 [a] [7] [i]). A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” (6 NYCRR 617.9 [a] [7] [ii]). “A lead agency’s determination whether to require a SEIS–or in this case a second SEIS–is discretionary” (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231 [2007]), and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” (id. at 232).

. . . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence. The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles.

(Memorandum and Order, p. 2). Thus, the Appellate Court rejected the Petitioners’ contentions in favor of the reasoned discretion of the reviewing agency and dismissed the petition in its entirety.

A copy of the Court’s decision can be accessed by clicking the following link: Matter of McGraw.

As a “home rule” state, New York’s zoning and other land use decisions are typically made at the village, town, or city level.  However, Section 239-m of the General Municipal Law (GML) requires a referral to, and a subsequent recommendation by, the local county planning commission for certain local land use actions that might affect the interests of other jurisdictions. The failure of a local board to make a required referral can have severe consequences, including having its decision deemed void and unenforceable.

General Municipal Law § 239-m

GML § 239-m(2) provides that any village, town, or city that is located in a county that has a county planning agency or, in the absence of a county planning agency, that is located in the jurisdiction of a regional planning council, must refer the following proposed actions to the planning agency or council before taking final action:

  • Adoption or amendment of a comprehensive plan;
  • Adoption or amendment of a zoning ordinance or local law;
  • Issuance of special use permits;
  • Approval of site plans;
  • Granting of use or area variances; and
  • Other authorizations that a referring body may issue under the provisions of any zoning ordinance or local law.

However, referrals of these actions are required only if they apply to real property within 500 feet of any of the following:

  • The boundary of any village, town, or city;
  • The boundary of any existing or proposed county or state park or other recreation area;
  • The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway;
  • The existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines;
  • The existing or proposed boundary of any county or state owned land on which a public building or institution is situated; or
  • The boundary of a farm operation located in an agricultural district (except with respect to the granting of area variances).

The purpose of a GML § 239-m referral is to ensure that regional or county-wide concerns are taken into consideration in the local planning process.

The county planning agency or regional planning council to which a referral is made has 30 days (subject to being extended by mutual agreement) to report its recommendations to the referring body. This time starts to run only after the planning agency or council has received a full statement of the proposed action.  The planning agency or council’s report must be accompanied by a statement of the reasons for its recommendations. If the planning agency or council fails to issue a report within this period, the referring body may act on the proposed action.

Once the planning agency or council has reviewed the proposed action, it may recommend approval, modification, or disapproval of the proposed action, or it may report that the proposed action has no significant county-wide or inter-community impact and deem it to be a matter for local determination.  If the planning agency or council recommends modification or disapproval of a proposed action, the referring body may not act contrary to the recommendation unless a supermajority of the referring body – that is, a majority plus one of all of its members – votes to do so.

GML § 239-m(3)(c) also authorizes a county planning agency or council to enter into agreements with municipalities to provide that certain proposed actions otherwise subject to referral are matters of local determination, rather than of inter-community or county-wide concern, and are not subject to referral.

Suffolk County

Zoning and planning actions in Suffolk County must also comply with the referral requirements of the Suffolk County Administrative Code (SCAC), which requires review and recommendation over a slightly expanded scope of zoning actions within the county as compared to GML § 239-m.

In particular, Section A14-14 of the SCAC requires that towns and villages refer to the Suffolk County Planning Commission (SCPC) any zoning regulation or amendment that would change the district classification of, or regulations applying to, real property lying within one mile of a nuclear power plant or airport or within 500 feet from:

  • The boundary of any village or town;
  • The boundary of any existing or proposed county, state, or federal park or other recreation area;
  • The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway;
  • The existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines;
  • The existing or proposed boundary of any other county, state, or federally owned land held or to be held for governmental use;
  • The Atlantic Ocean, Long Island Sound, any bay in Suffolk County, or an estuary of any of the foregoing bodies of water; or
  • The boundary of a farm operation located in an agricultural district.

Following the referral of a zoning action to the SCPC, the Commission has 45 days after receipt of a full statement on the proposed action to issue its report.

In order to reduce the administrative burden on local municipalities and to focus on actions with inter-community or county-wide implications, the SCPC, by resolution passed on September 3, 2008, determined that the following actions are matters for local determination that will not be subject to referral pursuant to the GML or the SCAC, provided that an inter-municipal agreement with the referring body is entered into:

  • All area variances associated with single-family residences.
  • Change of one permitted use to another with no changes in parking requirements (i.e. retail to office).
  • Minor additions less than 1,000 square feet with no change to use or occupancy.
  • Site plan applications proposing less than 5,000 square feet of new or renovated floor area or less than 10,000 square feet of land disturbance.

However, if any of the above actions are the subject of a Positive Declaration pursuant to the State Environmental Quality Review Act or involve property abutting state or county parkland, the Atlantic Ocean, Long Island Sound, any bay in Suffolk County or estuary of any of the foregoing bodies of water, they shall be subject to the full SCPC review process.  For a more detailed discussion of the benefits of inter-municipal cooperation under GML § 239-m, see our prior blog post, No More General Municipal Law 239-m County Referrals!


The law is clear that a local government’s failure to refer a proposed zoning or land use planning action to the relevant county commission can lead to its approval of the proposed action being invalidated by the courts. For example, in Matter of LCS Realty Co., Inc., 273 A.D.2d 474 (2d Dep’t 2000), the Appellate Division, Second Department, ruled that the Village of Roslyn’s comprehensive master plan was void and unenforceable because the village failed to comply with GML § 239-m.  More recently, in Matter of Calverton Manor, LLC, 160 A.D.3d 842 (2d Dep’t 2018), the  same court ruled that the Town of Riverhead’s failure to refer a proposed transfer of development rights law constituted a “jurisdictional defect” that rendered the adopted law void and unenforceable.

Accordingly, local officials must adhere to the requirements of GML § 239-m and other county referral laws in order to limit the risk that their zoning or other land use decisions will be invalidated.